Shook v. Peavy , 23 N.C. App. 230 ( 1974 )

208 S.E.2d 433 (1974) 23 N.C. App. 230

Ross G. SHOOK et al.
v.
Mary W. PEAVY and the Iredell County Department of Social Services.

No. 7422DC531.

Court of Appeals of North Carolina.

October 3, 1974.

Collier, Harris, Homesley, Jones & Gaines by Walter H. Jones, Jr., Mooresville, for plaintiffs appellees.

Pope, McMillan & Bender by W. H. McMillan, Statesville, for defendants appellants.

MARTIN, Judge.

Defendants argue that the temporary custody order of 8 March 1974, should be vacated in that it overrules an earlier order by another district judge, made on 28 February 1974, pursuant to a petition by the Department of Social Services to declare Terry Wayne Peavy a neglected child.

In its 8 March order, the trial court found "That on February 28, 1974, the issue of whether custody should be awarded to plaintiffs was not litigated or heard". Furthermore, the parties to this action stipulated that plaintiffs sought to introduce evidence at the 28 February hearing but the court declined to hear further evidence after defendant (then petitioner) had put on its evidence.

G.S. § 7A-285 discusses the type of hearing which should take place in determining whether a child is neglected. It provides in part that "The child or his parents, guardian or custodian shall have an opportunity to present evidence if they desire to do so, or they may advise the court concerning the disposition which they believe to be in the best interest of the child." G.S. § 7A-278(7) defines custodian as a "person or agency that has been awarded legal custody of a child by a court, or a person other than parents or legal guardian who stands in loco parentis to a child." "The term ``in loco parentis' means in the place of a parent, and a ``person in loco parentis' may be defined as one who has assumed the status and obligations of a parent without a formal adoption." 67 C.J.S. "Parent and Child" § 71, p. 803. The parties have stipulated that the Shooks were the "custodians of the child". Clearly, the Shooks had a right to be heard at the 28 February hearing.

Defendants point out the general rule that no appeal lies from an order of one district judge to another. We do not argue with this statement. We just do not think it is applicable to the situation before us. We have said in In re Holt, 1 N.C.App. 108, 160 S.E.2d 90 (1968), that "[W]here custody and support has not been brought to issue or determined, the custody and support issue may be determined in an independent action in another court." Accord, Wilson v. Wilson, 11 N.C.App. 397, 181 S.E.2d 190 (1971). Since the 28 February 1974 order declaring the child neglected was the result of a hearing in which custody was not properly brought to issue or determined, we fail to see how it has been overruled by the later custody order of 8 March 1974.

It is ordered that this opinion be certified forthwith to the Iredell County District Court.

Affirmed.

BROCK, C. J., and MORRIS, J., concur.